420 RIVERSIDE DRIVE v. “John and/or Jane Doe”, Under-Tenants.

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Supreme Court, Appellate Term, New York.

420 RIVERSIDE DRIVE, Petitioner-Landlord-Respondent, v. Thomas ETTINGER, Respondent-Tenant-Appellant, “John and/or Jane Doe”, Under-Tenants.

Decided: May 29, 2003

Present:  LUCINDO SUAREZ, P.J., WILLIAM J. DAVIS and MARTIN SCHOENFELD, J. Breir, Deutschmeister, Urban & Fromme, P.C., New York City (Jason S. Deutschmeister of counsel), for appellant. Santo Golino, New York City, for 420 Riverside Drive, respondent.

Order dated June 26, 2002 (Karen S. Smith, J.) affirmed, with $10 costs.

 In these holdover proceedings consolidated for disposition below, landlord, a cooperative corporation, seeks to recover two cellar spaces leased to Thomas Ettinger, who is also the non-purchasing rent controlled tenant of two joined eleventh floor apartments in the building.   Civil Court properly rejected tenant's argument that the cellar spaces are subject to rent regulation because he used them as “ancillary living space” appurtenant to the rent controlled apartments.   The rooms at issue are designated as storage space on the certificate of occupancy and lack kitchen or bathroom facilities.   They are clearly not physically appurtenant to the controlled apartments and were demised under leases (now expired) which made no reference to the apartments to which they are ostensibly connected.   Tenant makes separate rent payments for the residential and basement spaces.   As correctly stated by the motion court, coverage under a rent regulatory scheme is a matter of statutory right and cannot be created by waiver or estoppel (see, Ruiz v. Chwatt, 247 A.D.2d 308, 669 N.Y.S.2d 47).   Tenant could not, by his use of the cellar premises for storage, workspace or recreational activities, confer regulated status upon separate and distinct nonresidential space that was not equipped or leased as a housing accommodation (see, 129 East 56th Street Corp. v. Harrison, 122 Misc.2d 799, 473 N.Y.S.2d 910).   Accordingly, a possessory judgment was properly granted after service of the appropriate termination notices.

We have considered tenant's other arguments and find them lacking in merit.

This constitutes the decision and order of the court.